A Visit from Albie Sachs, South African Activist and Constitutional Court Justice

On April 7, 1988, Albie Sachs was unlocking his parked car outside of his home in Maputo, Mozambique when a car bomb planted by South African security agents went off, killing a nearby pedestrian and gravely wounding Sachs. Sachs lost his right arm and sight in his left eye and underwent months of rehabilitation for other wounds and broken bones. But Sachs emerged from the experience overjoyed to be alive and strengthened by the knowledge that despite their best efforts, the South African government’s efforts to kill him had failed. Sachs described the bombing and his recovery in the 1990 book The Soft Vengeance of a Freedom Fighter, raising awareness of the brutality of the South African Apartheid regime. But rather than being a literal call to arms for revenge against an unjust government, Sachs’ book stressed the need for justice and rule of law. Since then, Sachs has spoken frequently of the bombing and how the experience only increased his resolve to bring equality and legality to his country. Sachs summarized his thoughts following this brutal incident in his 2009 book The Strange Alchemy of Life and Law:

[I]f the person accused in a Mozambique Court of being responsible for placing the bomb in my car is put on trial and the evidence is insufficient and he is acquitted … that will be my soft vengeance, because we will be living under the rule of law. To gain freedom was a much more powerful vengeance than to impose solitary confinement and torture on the people who had done these things to us. To repay them in kind would have meant that we had become like them, that we had become gangsters and crooks and thugs—for a more noble cause to be sure, but in the end no different from them, only stronger. Our souls would be like their souls, and our inhumanity would be inseparable from their inhumanity.

William & Mary was honored to host respected civil rights activist, author, and retired South African Constitutional Court Justice Albie Sachs on March 30 and 31, 2014. In two separate presentations, Sachs discussed the struggle against Apartheid, the process of creating the South African Constitution, and the crucial role played by Nelson Mandela, the activist, long-time political prisoner, and president of South Africa, who passed away on December 5, 2013.

Background on Justice Albie Sachs

Albert “Albie” Sachs was born in 1935 in Johannesburg, South Africa to Jewish immigrant parents. He became a committed participant in the struggle against Apartheid at the age of 17; his first act of defiance was sitting on a bench marked for blacks only, which resulted in his first arrest. Sachs studied law at the University of Cape Town, then went on to defend South Africans arrested for violating race statutes. In the 1960s Sachs was twice arrested and subjected to harsh interrogation; in 1966 he went into exile in England, where he began writing about his experiences in South Africa. Sachs published an account of his incarceration, The Jail Diary of Albie Sachs, followed by Justice in South Africa, an examination of the corrupted legal principles of the Apartheid system. Sachs went on to become a professor at the University of Southampton until 1977, when he moved to Mozambique to teach and resume his work with the African National Congress (ANC).

While working in Mozambique, Sachs was gravely injured by the car bomb that would only strengthen his resolve to bring human rights to South Africa. The work of Sachs and others finally began to bring real change from within the government of South Africa. In 1990, the government at last recognized the ANC as a legitimate political organization and freed Nelson Mandela after 27 years of incarceration. Sachs returned to South Africa and helped guide the country through the complicated transition out of Apartheid and into true democracy. Sachs was part of the committee to draft a new constitution and was a key advocate for creating a Bill of Rights to provide guiding principles for the newly restructured multi-racial nation. South Africa held its first democratic election in 1994, electing Mandela president. Mandela appointed Sachs to the Constitutional Court, where he served for 15 years. While on the court, Sachs was an outspoken proponent for expanding and strengthening the protections of the Constitution, and he authored the landmark decision Minister of Home Affairs v. Fourie (2005), which held that same sex couples had a constitutional right to marry, making South Africa one of the first countries in the world to recognize this as a constitutional right. Sachs continues to actively write and lecture around the world, sharing his inspiring story with a new generation of lawyers and activists.

“Soft Vengeance of a Freedom Fighter” and the Truth and Reconciliation Commission

On March 30, 2014, Mr. Sachs spoke to the Williamsburg community at Hennage Auditorium, an event co-sponsored with William & Mary’s Reves Center for International Studies and the Colonial Williamsburg Foundation.

Sachs described the creation of South Africa’s Truth and Reconciliation Commission, a restorative justice assembly which was established in 1995 and began holding hearings in 1996, created in order to publicly address the abuses of the past and aid the transition to a more peaceful and multi-cultural future for the nation. In forming this Commission, there was concern regarding whether the Commission would investigate crimes of only the government, or of the ANC and other anti-Apartheid groups as well. “We can’t just turn over the page, forget the past,” stated Sachs, emphasizing the importance that all crimes and abuses from the past era would have to be acknowledged before there could be any hope of reconciliation and movement forward. Sachs explained the three of the divisions of the Truth and Reconciliation Commission. First, there was the collection of personal testimonies, including a travelling team, led by Commission leaders such as Archbishop Desmond Tutu, who solicited testimony throughout the country, reaching out to “the people whose stories had never been heard.” The response was tremendous; over 10,000 people wrote in their stories, releasing some of the pain caused by “suppressed silence.” Second, there were applications for amnesty. While some ordinary criminals wrote in, claiming their crimes were part of the liberation when they were not, the majority of the applications came from former members of the Apartheid government’s security forces. Third, there were reparations—financial compensation for victims of Apartheid—which, Sachs noted, “to my mind, the part that was the least creative,” as they should have “focused far more on the emotional repair.”

The Truth and Reconciliation Commission helped South Africa to “convert knowledge into acknowledgment.” Only by acknowledging that these things had happened, could the nation stop them from happening in the future. Sachs discussed how astounded he was by the response to the process. And once people were given the opportunity to testify, the “truth came pouring out.” Sachs discussed the lessons he drew from The Story of My Experiments with Truth by Mahatma (Mohandas) Gandhi about the value of experiential truth. While the search for truth never ends in South Africa, the Truth and Reconciliation Commission at least delegitimized any future attempts at denial of Apartheid abuses. As Sachs wrote in The Strange Alchemy of Life and Law, it created “a single, broad, commonly accepted narrative of the country’s history,” leading to a “much less divided country than the one we occupied before. As Americans put it—we are coming all to be on the same map, or at least beginning to assemble there.”

In the question and answer period following his talk, Sachs discussed the new documentary, Soft Vengeance: Albie Sachs and the New South Africa, directed by Abby Ginzberg. While he felt very exposed and embarrassed by all the focus from the film, he remarked on how it was his privilege to be a part of such an important civil rights struggle and then to participate in the creation of a new country as well.

"Working with Mandela: The Constitutional Process in Post-Apartheid South Africa"

Mr. Sachs spoke again at the Law School on March 31, 2014, at a lunchtime lecture co-hosted by the International Law Society and the Black Law Students' Association. He began the talk by describing his first anti-Apartheid meeting, held on April 6, 1952, the anniversary of Dutch colonialization, and his start with the Defiance of Unjust Laws Campaign. The first voluntary law breaker of this campaign was Nelson Mandela, who started “the struggle that helped create the embryo” that eventually grew into a united South Africa.

On June 26, 1955, the ANC adopted a Freedom Charter, a document which laid out principles of equality for the nation, declaring that “South Africa belongs to all who live in it, black and white together.” All 156 leaders of the ANC were arrested for treason, including Mandela. Their trial was long and tedious, and Mandela, himself a lawyer, took part in the cross-examination. Mandela’s participation in the trial brought him national prominence and helped establish his role as a figurehead for the movement. Mandela was later arrested in 1962 for inciting strikes and for leaving the country unlawfully. He eloquently represented himself at the trial, but was nevertheless convicted and sentenced to life in prison.

During Mandela’s long imprisonment, Oliver Tambo, the President of the ANC, insisted that the movement focus on Mandela, individually, to gain local and international support—promoting a whole group was too abstract. The concert held in honor Mandela’s 70th birthday June 11, 1988 in London was immensely popular, even in the USA, and marked “the last straw” for the Apartheid government’s grip on the country. But, Sachs pointed out, the typical Mandela narrative is a trivialization of his real role in the movement. He was a disciplined member of the ANC, and after his release from prison he was the person standing at the helm overseeing the entire legal transition, including the creation of a new Constitution.

The South African Constitution established a Constitutional Court, created to uphold the rights and freedoms granted to all South African citizens by the new Constitution. Four of the justices appointed to the Constitutional Court had been justices under Apartheid who had “used the small leeway allowed them to soften Apartheid’s impact.” Although the justices of the Court were a mixture of races and backgrounds, as Sachs wrote in The Strange Alchemy of Life and Love, all of them were “totally dedicated to upholding the idea of living in an open and democratic society based on human dignity, equality and freedom.” One of the first major decisions of the Constitutional Court struck down a law issued by President Mandela, as it was an overreach of executive power into the legislative power designated to Parliament. Rather than fighting the decision, Mandela appeared on television and stated that he accepted the decision of the Constitutional Court and the primacy of the new Constitution.

The Influence and Legacy of Justice Albie Sachs

In a preface to the new edition of Sachs’ book The Soft Vengeance of a Freedom Fighter, Nancy Scheper-Hughes described the powerful impact that Mr. Sachs makes with his willingness to display his missing limb as evidence and artifact of the cruelty of the former South African regime:

And over there, his back turned so carelessly to the door, is Albie Sachs with his handsomely lined face and his resonant soothing voice, the agnostics’ theologian, pressed in his priestly robes, his favorite bright dashiki, excitedly waving his phantom limb, to make a point. That ever-present missing piece is Albie’s most expressive body part, that freely waving sleeve is Albie’s sweet banner of liberty. Of thee, I sing, Albie.

Justice Albie Sachs provides an inspiring example to law students and lawyers around the world. After nearly losing his life from a bomb planted by his own government, Sachs became yet more committed to the principles of justice and adherence to the rule of law. He participated in the writing of a new Constitution, often considered one of the most progressive and influential in the world. He has written and talked at length about the process of creating the Constitution and the problems that were encountered after its implementation. These lessons provide a guide for other countries who have since amended or rewritten their own Constitutions. He has written about the workings of the Constitutional Court and the process of writing a Constitutional Court decision, providing insight into the common challenges and pitfalls of nation creation and the implementation and interpretation of a new constitution.

The words and work of Albie Sachs provides a strong argument for the need for all countries to possess a strong constitution with meaningful and expansive rights and freedoms for its citizens. He wrote in The Strange Alchemy of Life and Law of the important role lawyers and judges have to play.

And to the extent that I have seen colleagues of mine in other countries with legal structures that do not include the same expansive constitutional provisions that we have, taking positions that keep alive in a meaningful way—not in a demagogic way, but in a meaningful way—the core values of a open and democratic society, then not only do I take pride in our profession, I find burgeoning within myself the hope that at precisely the moments when we are most under stress, we will find the greatest intellectual and moral resources to protect what Lincoln called the “better angels” of ourselves.

Further Reading

To learn more about Albie Sachs’s life and his work as an activist and a Constitutional Court Justice, read his works Justice in South Africa, The Soft Vengeance of a Freedom Fighter, Liberating the Law: Creating Popular Justice in Mozambique, and The Strange Alchemy of Life and Law. And look for the recently released biographical documentary Soft Vengeance: Albie Sachs and the New South Africa, directed by Abby Ginzberg. To learn more about Nelson Mandela, read his autobiography, Long Walk to Freedom. To learn more about South Africa’s Truth and Reconciliation Commission, read A Country Unmasked: Inside South Africa’s Truth and ReconciliationCommission by Alex Boraine.